After the precedent-setting dismissal of the Apple versus Motorola case last year by Judge Posner in the United States Court for the Northern District of Illinois, both parties were expected to head to appeals court with the matter. Apple filed its brief in late November, and Google and Motorola Mobility filed its initial brief yesterday. Google is now -- for the first time -- declaring that Apple is an "unwilling licensee" of the patents that Judge Posner declared were standards-essential. Therefore, the Cupertino manufacturer wasn't subject to the protections afforded by it under litigation requirements for patents mandated to be subject to fair, reasonable, and non-discriminatory (FRAND) licensing.

The 38-page ruling made by Posner in June points out missteps and errors made by both companies' lawyers, as well as illustrating areas where both companies could have solidified their arguments with regards to damages. Apple was noted as having tainted an expert witness by having him rely mainly on Apple engineers for an assessment of potential damages, while Motorola's claim that its sole remaining patent in that case was not subject to the concept of "fair, reasonable and non-discriminatory" (FRAND) licensing was viewed dubiously by the judge -- who seemed to suggest that he would have dismissed Motorola's claim outright had the case gone to trial.

Google is now changing course, calling Apple an "unwilling licensee" as opposed to an direct patent violator in order to skirt the Federal Trade Commission (FTC) requirement that Google cease all litigation involving FRAND-eligible patents. Google has been barred by the consent decree with the FTC to seek injunctions against willing licensees. Declaring Apple an unwilling licensee, in theory, allows it to seek product bans against the manufacturer, and gives Motorola room to argue that Motorola's near-usurious 2.25 percent royalty demand is appropriate, given the situation.

Patent analyst Florian Mueller -- who does consulting for Oracle, a company that has also sued Google over patent issues -- views the standards-essential embargo pursuit by Google as "regrettable" and says that "this behavior is not just somewhat inconsistent, but totally irreconcilable with Google's ever-more-vocal criticism of software patents and abusive patent litigation." He goes on to say that "[standards-essential patent] abuse is the worst form of patent abuse."

Google, for its part, now believes that the "district court erred in categorically barring injunctive relief for infringement of standards-essential patents". It also states that Judge Posner "failed to apply the four-factor eBay test to evaluate Motorola’s claim for injunctive relief" when he tossed the suit between the two giants. It also says that during the trial, "Motorola offered considerable evidence showing that, unlike every other major cellular handset manufacturer, Apple has been an unwilling licensee vis-à-vis Motorola's standards-essential patent portfolio."

Mueller believes that if Motorola had been asking for a reasonable licensing fee, then Apple would have taken a license. He claims sources have told him that "Apple has in fact concluded a number of SEP license deals, and I know that it's having licensing discussions all the time. There have also been references to this fact (even though the details were kept confidential) in some pleadings."

Apple will respond to the Google/Motorola claims in it second brief to the appeals court. Amicus curae opinions from the industry should follow shortly thereafter. Ultimately it will be up to a judge to determine if Apple has acted in good faith or not, and whether Google's and Motorola's claims are spurious and their royalty rate reasonable.